Kime v. Jesse

• Decision Date: 18 November 1897
• Docket Number: 7562
• Citation: 72 N.W. 1050,52 Neb. 606
• Parties: JOSEPH A. KIME, APPELLANT, v. FRANK E. JESSE ET AL., APPELLEES
• Court: Nebraska Supreme Court

72 N.W. 1050

52 Neb. 606

JOSEPH A. KIME, APPELLANT, v. FRANK E. JESSE ET AL., APPELLEES

No. 7562

Supreme Court of Nebraska

November 18, 1897

APPEAL from the district court of Box Butte county. Heard below before BARTOW, J. Modified.

Judgment affirmed in part and reversed in part.

R. C Noleman and Chas. T. Jenkins, for appellant.

William Mitchell, contra.

OPINION

HARRISON, J.

July 26, 1894, the appellant commenced this action in the district court of Box Butte county, alleging in the petition filed that Frank E. Jesse executed and delivered to him on December 16, 1892, a promissory note in the sum of $ 440, due one year after date, and to secure payment of the debt evidenced by the note, executed and delivered to appellant a mortgage in which it was intended to describe and render liable to the lien the northwest quarter of section 4, township 25, range 47, in Box Butte county, Nebraska; that the note and mortgage were prepared in the office of and by an attorney at law and notary public in Alliance, Box Butte county, he having been employed by the parties for such purpose; that in writing the mortgage a mistake occurred in the description of the land therein, by which it was located in township 24 instead of in township 25, its true location, and as it was intended to and should have appeared in the mortgage; that the mortgage as written and executed was on December 19, 1892, duly recorded in the proper office. It was further pleaded that at a date subsequent to the reception by the appellant of the mortgage and its record, he discovered that the mistake in the description of the land had been made, and the steps then taken by him we will give in the words of the petition, as follows:

"This plaintiff went at once to the said W. G. Simonson, who drew the mortgage as set out in this petition, and asked him, as the agent of the parties and as an attorney at law, what was best to be done in the matter, and thereupon the said W. G. Simonson advised and said that he was the agent of both parties to draw up said mortgage, and that it was to be correct, and to convey by mortgage another tract of land, and the said W. G. Simonson then corrected said mortgage to read 'township 25,' as was intended that it should read, instead of 'township 24,' as it by mistake did read.

"10. The said plaintiff, acting in good faith and relying on the validity of said correction, at once had said mortgage recorded as the same was after being corrected, in manner and form as heretofore set out in this petition. Said recorded mortgage as recorded at this time, to-wit, June 14, 1893, was duly recorded in Book 14 of the mortgage record of Box Butte county, Nebraska, at page 8, and remains of record to this date. He relied wholly on the ability of W. G. Simonson as an attorney, and on his statements that he was agent for both parties and had a right to correct said mortgage; and that it was corrected not by the request of plaintiff, but by the consent of plaintiff, relying on the statements of W. G. Simonson that he was the agent of Frank Jesse, and if there was a wrong done in this matter it has been done by the agent of Frank Jesse, as this petitioner believes."

It was further pleaded that Frank E. Jesse intermarried with the daughter of one Frank Bauer, Sr., and afterward, and also subsequent to the time Frank E. Jesse had ascertained the fact of the mistake in the description of land in the mortgage, he conveyed the real estate, which it was intended should have been included in the mortgage, to Frank Bauer, Sr., who was then the father-in-law of the said Frank E. Jesse, the consideration for such transfer stated in the conveyance being $ 1,000; that in fact there was no consideration passed between the son-in-law and the father-in-law; the conveyance was but a pretension and the sale pursuant to which it purported to be executed was a sham and unreal.

The prayer of the petition was for a reformation of the mortgage and its foreclosure. A demurrer to the petition was filed for the defendant Bauer, but it seems not to have received any further notice. The record does not disclose that it was ever presented to the court or passed on.

For Frank E. Jesse and his wife, of defendants, there was filed the following motion: "Comes now the defendants Frank E. Jesse and Mrs. Frank E. Jesse and move the court for judgment of cancellation of mortgage in above entitled case, and that same be declared void and fraudulent, for the reason that plaintiff admits and pleads in his petition that mortgage upon which this action is brought is not mortgage executed by Frank E. Jesse, but one that was changed so as to conform to ideas and understanding of W. G. Simonson, a notary public, who executed first mortgage."

Of the action taken on this motion there is the following journal entry: "Now on this 19th day of September, 1894, this cause came on to be heard on motion of defendants Frank E. Jesse and Mrs. Frank E. Jesse, first name unknown, for judgment on pleadings, a cancellation of mortgage in this case, and that same be declared void. Whereupon the plaintiff was allowed to amend his petition instanter, but plaintiff asking for more time, he was allowed until September 20, 1894, to amend his petition.

"September 21, 1894, the above motion of defendants Jesse is sustained and mortgage and note involved in this case is, and the same is hereby, considered and adjudged by the court, after being fully advised in the matter, to be null and void, and note and mortgage is hereby cancelled. Plaintiff excepts and is given forty days to file his bill of exceptions."

It is argued that a motion for judgment on the pleadings could not be interposed and entertained at the stage of the proceedings at which it was filed and presented in the case at bar, that the only proper and allowable method to make such an attack was by demurrer. In the case of Hedges v. Roach, 16 Neb. 673, 21 N.W. 404, it was stated: "After * * * answer was filed the plaintiff moved for judgment non obstante, and the overruling of his motion he assigns as the first error. It was no doubt the law and the practice under the old system in courts of equity, that at a certain stage of the case the plaintiff could have it set down for argument on bill and answer, and when upon such argument it appeared to the court that the plaintiff's cause of action was undenied either at law or in fact, a decree would be rendered for the plaintiff. This practice has, I think, been superseded under the Code by that of demurrer to the answer, motion for order requiring defendant to make his answer more definite and certain, and motions to strike the answer from the files as frivolous. Some one of these will in each case be found to furnish the appropriate remedy against a faulty answer. So that, in the absence of authorities, this point cannot be sustained." And in the syllabus to the opinion it...